Upper Tribunal (Immigration and asylum chamber), 2020-02-19, HU/15707/2018
| Jurisdiction | UK Non-devolved |
| Date | 19 February 2020 |
| Published date | 20 March 2020 |
| Hearing Date | 06 November 2019 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/15707/2018 |
Appeal Number: HU/15707/2018
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/15707/2018
THE IMMIGRATION ACTS
|
Heard at Field House |
Decision & Reasons Promulgated |
|
On 6 November 2019 |
On 19 February 2020 |
|
|
|
Before
UPPER TRIBUNAL JUDGE PITT
UPPER TRIBUNAL JUDGE RINTOUL
Between
Finest [A]
(ANONYMITY DIRECTION not made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr B Bedford instructed by Thompson & Co Solicitors
For the Respondent: Ms J Smyth, instructed by the Government Legal Department
DECISION AND REASONS
-
The appellant appeals pursuant to section 82 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act) against a decision made on 16 July 2018 to refuse his protection and human rights claims, the Secretary of State having decided that he is a foreign national offender who must be deported. His appeal against that decision was dismissed by the First-tier Tribunal in a decision promulgated on 27 December 2018. The Upper Tribunal set that decision aside for reasons set out in a decision issued on 23 May 2019 and in which it directed the appeal be remade in the Upper Tribunal which, subsequent to a transfer order, we now do.
-
The appellant’s wife has been recognised as a refugee and granted leave to remain on that basis. The appellant is, however, a foreign criminal whom the Secretary of State must deport unless he falls within one of the exceptions set out in section 33 of the UK Borders Act. His case is that he meets the requirements of the Immigration Rules to be granted leave as the spouse of a refugee; and, on that basis, his deportation is disproportionate because the Immigration Rules set out where the Secretary of State says the public interest lies. In short, that it cannot be in the public interest to deport someone who meets the requirements of the Immigration Rules. The Secretary of State does not accept that the appellant cannot be deported.
Background
-
We consider it necessary to set out in some detail the complex history of this case and how this appeal came about.
-
The appellant is a citizen of Nigeria. He first entered the UK with entry clearance as a visitor on 19 October 2005. It appears from the sentencing remarks of the Crown Court judge that in early 2007, when in the UK as an overstayer, the appellant decided to change his identity to assume British citizenship. He came across the identity of James Samuel Walters, a British citizen born in 1968 who had died in America in 1989 and whose death had never been registered in the UK. The appellant applied for and obtained a British passport, a UK driving licence and a National Insurance number in that name then travelled to Nigeria in that identity and married his wife there on 3 November 2007 in his false identity. Leaving his wife in Nigeria, he returned to the UK and obtained employment in his false identity. He then applied for visas, ultimately successfully obtaining settlement visas, for his wife and B, his son by another woman. They arrived in the UK in June 2010.
-
On 28 April 2011 the appellant's daughter C was born in the UK. In September 2011 the appellant applied for settlement for 2 more of his children (from another past relationship) but this was unsuccessful because the appellant was arrested on 16 December 2011 after he tried to re-enter the UK from Nigeria where he had travelled to assist with the applications.
-
The appellant pleaded guilty on 2 April 2012 to three counts of assisting illegal entry for which he was sentenced (on 15 June 2012) to 32 months' imprisonment to run concurrently, to two counts of dishonestly making false representations and to 12 months’ imprisonment on each of two counts of possessing or controlling a false/another person's identity document, both sentences to run concurrently with each other and with the other sentences.
-
On 29 June 2012 the appellant's wife applied for leave to remain on the basis of her human rights. In August 2012 she gave birth to their second daughter.
-
On 20 August 2012 the appellant was notified of his liability to deportation. He claimed asylum on 27 February 2013 but withdrew his claim on 12 March 2013.
-
On 17 April 2014 the respondent refused the appellant’s wife’s human rights application. She appealed against that decision.
-
On 25 June 2014 the respondent made a deportation order in respect of the appellant and served that decision together with one dated 1 July 2014 finding that he is a person to whom the automatic deportation provisions set out in the UK Borders Act 2007 applied.
-
Meanwhile, on 30 September 2014, the appellant's wife's human rights appeal was dismissed, the judge noting that the appellant's wife had raised the first time, in the bundle of documents prepared for the hearing, a claim that her daughters would be at risk of FGM if removed to Nigeria, but concluding that it was a new matter and so could not be considered. The appellant's wife sought permission to appeal the decision but this was refused on 1 December 2014.
-
On 9 December 2014 the appellant's wife claimed asylum on the basis of fear of FGM for her daughters. The appellant and the children were named as dependents on her claim. On 23 April 2015, the appellant and his wife's third child was born.
-
By a decision promulgated on 3 June 2015, Judge Phull allowed the appellant's appeal to the limited extent that the decision was not in accordance with the law and the appellant awaited a lawful decision. Her reasons (at [50]) were that the respondent had failed to give any consideration to the risks of FGM that the appellant's daughters might face on return to Nigeria, this preventing the judge from making a proper assessment under Articles 3 and 8 ECHR.
-
On 26 January 2016 the respondent refused the appellant's wife's claim for asylum. She appealed but her claim was dismissed by Judge O'Hagan by a decision promulgated on 14 October 2016. The appellant's wife gained permission to appeal to the Upper Tribunal and, by a decision promulgated on 10 May 2017, Deputy Upper Tribunal Judge Eshun allowed the appeal finding that the children would be at risk of FGM in Nigeria. The respondent sought permission to appeal to the Court of Appeal but was unsuccessful, permission to appeal being refused on 30 June 2017.
-
On 22 December 2017 the appellant's wife and children were granted leave to remain in the UK on asylum grounds for five years.
-
By a letter of 1 February 2018, the appellant was told that his case fell for consideration under section 72(2) of the 2002 Act. The same letter included a one-stop notice and invited the appellant to put forward reasons why he should not be deported.
-
On 16 July 2018, for the reasons set out in the refusal letter of that date, the Secretary of State decided that she was required to make a deportation order against the appellant as he did not fall within any of the exceptions to deportation set out at Section 33 of the UK Borders Act 2007. Having concluded that section 72(2) of the 2002 Act applied to the case, the respondent stated in the refusal letter:
“76. Your legal representatives have relied on Paragraph 349 of the Immigration Rules in that they claim you are a dependant of a refugee and, as such, you should be granted asylum and Leave to Remain in line with your partner and children. However, you are subject to a signed deportation order, dated 25 June 2014, and were at the time of your partner's application for asylum, in which she named you as a dependant, dated 9 December 2014. As such, your deportation order would need to be revoked prior to a grant of leave and there are no issues raised in your case that would result in this action.
77. You and your partner are not in need of protection in Nigeria, your partner's appeal was allowed due to the Immigration Judge finding that she would be unable to resist societal pressure to have your daughters subjected to FGM because of a lack of her education; there are therefore no protection issues for you on your return to Nigeria.”
Decision of the First-tier Tribunal
-
The First-tier Tribunal noted that it was accepted by the respondent that it would be unduly harsh for the appellant’s children to live in Nigeria given the grant of asylum to them and their mother but that it was not accepted it would be unduly harsh for the children to remain in the United Kingdom without the appellant. The judge found that:
-
the appellant had rebutted the statutory presumption under s.72 of the 2002 Act;
-
it would not be unduly harsh for the children to be separated from their father [58];
-
there were no very compelling circumstances such that the appellant should not be deported as Article 3 would not be breached if he was returned...
-
To continue reading
Request your trial